Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 19 January 2019.
Ruby makes a will leaving her whole estate to her two children, Jane and Luke.
Years later, Ruby sees a new solicitor and provides instructions to draft a new will which includes a clause that gives one of her valuable investment properties to her grandchildren.
The solicitor prepares the will and sends it to Ruby, but she is admitted to hospital shortly thereafter.
Ruby returns home from hospital but unfortunately, passes-away six years later.
The grandchildren make enquiries with Ruby’s solicitor and discover that the new will was not executed and not returned to the solicitor’s office. The new will cannot be found amongst Ruby’s personal effects.
The grandchildren apply to the Supreme Court for a declaration that the unsigned and missing will is declared valid.
Luke opposes the grandchildren’s claim on the basis that there is not a “scintilla of evidence” that Ruby executed the amended will. He says that Ruby never made mention of making a new will.
The solicitor’s file indicates that Ruby executed an Appointment of Enduring Guardian around the same time the new will was prepared.
The grandchildren claim that Ruby intended to sign the new will and that she mistakenly believed to have done so when she executed the Appointment of Enduring Guardian.
The grandchildren give evidence that Ruby had told them prior to her death that they would receive the real estate and say that they had a very close relationship with Ruby.
After a lengthy hearing, the court ultimately finds that Ruby believed that she had made a new will and that she had intended that it operate as her last will.
The unsigned and missing will is admitted to probate.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
